UPDATE 06/17/2021 – Cal/OSHA ETS Votes Today, Updated FAQs
Cal/OSHA has proposed a revised ETS, which the Board will consider at their meeting today (June 17). If approved, it will take effect no later than June 28. Until then, the current ETS remains in effect. We will keep you updated as things progress.
For now, Cal/OSHA has updated their FAQs to address the proposed revisions to ETS.
UPDATE (06/02/2021 – Cal/OSHA Reporter):
The Cal/OSHA Standards Board has published the latest version of COVID emergency temporary standards revisions ahead of a June 3rd vote. Here are the primary changes from a version published in early May. The Standards Board was set to vote on that version on May 20th but tabled the vote at the Division of Occupational Safety and Health request. Reports are that the Governor’s office was involved.
Beginning July 31st, fully vaccinated [those 14 days past the 2nd shot] employees without COVID symptoms will not need to be tested or quarantined after close contact and will not need to wear face coverings outdoors or at “mega events,” according to the revisions to General Industry Safety Orders §3205. They will also not need to wear face coverings indoors when everyone is vaccinated. Employer-provided housing and transportation will be exempt from the standard when all are vaccinated.
An “outdoor mega event” is defined as an event featuring more than 10,000 participants or spectators, including conventions, shows, outdoor nightclubs, concerts, sporting events, theme parks, fairs, festivals, large races, and parades.
“Before July 31st, employers can choose between using physical distancing and partitions/barriers, or they can provide respirators to unvaccinated persons for voluntary use,” according to Department of Industrial Relations spokesman Frank Polizzi. “After July 31st, employers no longer have a choice; they must provide unvaccinated employees with respirators for voluntary use. After July 31st, there is not a requirement to use physical distancing or partitions/barriers.”
If not all employees are vaccinated, face coverings will be required unless not feasible, or an employee cannot use one for medical reasons.
Additionally, there is a change regarding COVID outbreaks. “During outbreaks, employers must provide respirators for voluntary use to unvaccinated employees,” Polizzi says. “This requirement goes into effect immediately” (as soon as the revisions become effective). “This same requirement will apply to all unvaccinated workers after July 31st regardless is there is an outbreak or not.”
“We are disappointed to see the latest round of revisions does not match the governor’s June 15th deadline, or the recent Centers for Disease Control recommendations,” comments Rob Moutrie, policy advocate for the California Chamber of Commerce. “However, we think there are some small improvements in this draft. Employers should look closely at both the earlier revisions and these latest changes.”
The new draft will be voted on this Thursday, June 3rd. It is unclear whether it will be approved in its current form.
At the recent meeting on May 20th, Eric Berg, the Deputy Chief of Cal/OSHA asked that the Standards Board not vote to adopt Cal/Osha’s proposed ETS amendments.
Berg asked that Cal/Osha be allowed to present a new proposal for adoption at a future meeting with a targeted effective date of June 15, 2021. Berg cited the new developments of the CDC’s updated guidance to allow fully-vaccinated individuals to forego masks in some situations and California’s announced goal of fully reopening the state by June 15th, as the reasons for the postponement.
On May 7, 2021, Cal/OSHA posted new proposed amendments for its Covid-19 emergency temporary standards. (https://www.dir.ca.gov/oshsb/documents/COVID-19-Prevention-Emergency-txtcourtesy-Readoption.pdf)
The proposed amendments will be considered and likely adopted by the Cal/OSHA Standards Board when it meets on May 20, 2021. It is considered unlikely that the Board will change or reject any of the proposed amendments which means these amendments will pass and go into effect possibly as early as the end of May.
Below are some of the changes that might be of most interest to our employers. A number of the changes recognize the importance and effectiveness of vaccinations and provide exemptions from a range of requirements for fully vaccinated employees.
Exclusion from Work.
Fully vaccinated employees will be exempt from the 10-14 day exclusion and pay requirements of the ETS. Under the proposed amendments, employers do not need to exclude employees who are Covid-19 cases but were fully vaccinated before they became Covid-19 cases and do not have any symptoms and if local health department rules allow. Also exempt from exclusion are employees who had close contact but were fully vaccinated before they had close contact and do not have any symptoms.
Employers should be aware that per the attached Governor’s Executive Order N-84-20, fully vaccinated individuals can immediately follow the recent Calif. Dept. of Public Health (CDPH) updated guidance (dated May 3, 2021) and no longer need to be excluded from the workplace under the current ETS.
Outbreaks and Testing. Employers would also be relieved of the requirement to test vaccinated employees during an outbreak which under the proposed amendments would only be triggered by 3 or more cases among employees, as opposed to the current language which allowed non-employees passing through a workplace to trigger an outbreak.
Physical Distancing requirements would be changed to allow work locations with fully vaccinated employees, as well as employees wearing respirators, to cease physical distancing.
Face Covering. The definition of face covering is changed to specifically exclude “a scarf, ski mask, balaclava, bandana, turtleneck, collar or single layer of fabric.”
The proposed amendments also impose added compliance costs on employers:
N-5 respirators. Employers shall provide respirators for voluntary use to employees who have not been fully vaccinated, and encourage use of those respirators when employees are in a vehicle with at least one other person for 15 minutes or more.
Testing of Symptomatic Employees. Starting July 31, 2021, employers shall make Covid- 19 testing available at no cost to employees with Covid 19 symptoms, who are not fully vaccinated, during employees’ paid time.
Notice Requirements of Covid Case(s) in Workplace. Under the proposed amendments, an employer will be required to provide a follow-up verbal notice, as soon as practicable, if the employer should reasonably know that an employee has not received the written notice, or has limited literacy in the language used in the notice, The verbal notice must be in a language understandable by the employee.
Employers will need to update and revise their Company’s written Covid-19 Prevention Program.
Considering the significant number of amendments, I would expect OSHA to provide employers with an updated, online Model Covid-19 Prevention Program, and a FAQ page.
**Article provided by LAPFCA’s legal counsel, Antonia Powell.